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Contents
- Preliminary Material
- Dedication
- PREFACE
- ACKNOWLEDGEMENTS
- CONTENTS
- TABLE OF CASES
- AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS [AComHPR]
- EUROPEAN COMMISSION OF HUMAN RIGHTS [EComHR]
- EUROPEAN COURT OF HUMAN RIGHTS [ECtHR]
- EUROPEAN UNION COURT OF JUSTICE
- INTER-AMERICAN COMMISSION ON HUMAN RIGHTS [IAComHR]
- INTER-AMERICAN COURT OF HUMAN RIGHTS [IACtHR]
- INTERNATIONAL COURT OF JUSTICE [ICJ]
- INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
- INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA [ICTY]
- SPECIAL COURT FOR SIERRA LEONE
- UN HUMAN RIGHTS COMMITTEE [HRCTE]
- UNITED NATIONS COMMITTEE FOR THE PREVENTION OF TORTURE [CATCom]
- TABLE OF TREATIES
- TABLE OF OTHER INSTRUMENTS
- STANDARD-SETTING DOCUMENTS
- UNITED NATIONS
- Concluding Observations by the CESCR
- Concluding Observations by the HRCte
- Concluding Observations by the CATCom
- Reports of the UN High Commissioner for Human Rights
- Reports of UN Rapporteurs
- Working Group on Arbitrary Detention
- Other
- United Nations Committee on Economic, Social and Cultural Rights (CESCR) General Comments
- United Nations Committee for the Convention on the Rights of the Child (CRCom) General Comments
- United Nations Human Rights Committee (HRCte) General Comments
- Convention on the Elimination of all Forms of Discrimination against Women Committee (CEDAW)
- United Nations Resolutions
- LIST OF ABBREVIATIONS
- NOTE TO THE READER
- Main Text
- Introduction
- PART I OVERARCHING ELEMENTS
- 1 APPLICATION OF HUMAN RIGHTS LAW
- 1.1 AT ALL TIMES: DURING BOTH PEACE AND ARMED CONFLICT
- 1.2 SCOPE OF APPLICATION: JURISDICTION
- 1.2.1 TREATY PROVISIONS
- 1.2.2 INTERPRETATION OF THE REFERENCE TO ‘TERRITORY’ IN THE ICCPR PROVISION
- 1.2.3 APPLICATION WHERE THERE IS NO JURISDICTION CLAUSE
- 1.2.4 MEANING OF ‘JURISDICTION’
- 1.2.5 WHERE THE STATE HAS LOST CONTROL OF PARTS OF ITS NATIONAL TERRITORY
- 1.2.6 CONTROL OF ANOTHER STATE'S TERRITORY AS A RESULT OF MILITARY ACTION
- 1.2.7 RESPONSIBILITY FOR TRANSFERS TO OTHER STATES
- 1.2.8 CONTROL OR DECISIVE EFFECT OVER PERSONS OUTSIDE OWN TERRITORY
- 1.2.9 ACTIVITIES AFFECTING PERSONS OUTSIDE THE STATES BOUND BY A REGIONAL TREATY
- 1.3 INTERNATIONAL PEACEKEEPING OPERATIONS: JURISDICTION AND IMPUTABILITY
- 1.4 RELATIONSHIP BETWEEN ‘JURISDICTION’ AND ‘IMPUTABILITY’
- 1.5 RELATIONSHIP BETWEEN ‘JURISDICTION’ AND ‘OCCUPATION’
- 2 ENSURING RIGHTS
- 2.1 TREATY PROVISIONS AND GENERAL PRINCIPLES
- 2.2 THE OBLIGATION TO ‘ENSURE’ OR ‘SECURE’ RIGHTS
- 2.2.1 IMMEDIATE AND FULL IMPLEMENTATION
- 2.2.2 ENSURING THE SEPARATION OF POWERS AND BASIC PRINCIPLES OF DEMOCRACY
- 2.2.3 THE REQUIREMENT OF REALITY IN THE JUSTICE SYSTEM
- 2.2.4 STEPS NECESSARY TO PREVENT VIOLATIONS OF SPECIFIC RIGHTS
- 2.2.5 OBLIGATION OF ‘DUE DILIGENCE’ WITH REGARD TO THE ACTIONS OF PRIVATE PERSONS OR ENTITIES
- 2.2.6 PUNISHMENT TO BE OF A NATURE TO DETER FUTURE VIOLATIONS
- 2.2.7 SITUATIONS IN WHICH IT IS IMPOSSIBLE TO ENSURE RESPECT
- 2.2.8 CLASH OF INTERNATIONAL OBLIGATIONS
- 2.3 REALIZATION OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
- 2.4 THE REQUIREMENT OF NON-DISCRIMINATION
- 2.5 RIGHT TO A REMEDY
- 2.5.1 TREATY PROVISIONS
- 2.5.2 REQUIREMENT FOR REMEDY WHERE A VIOLATION OF A TREATY RIGHT IS CONCERNED
- 2.5.3 MEANING OF ‘EFFECTIVE REMEDY’
- 2.5.4 RELATIONSHIP BETWEEN RIGHT TO A REMEDY AND OTHER RIGHTS
- 2.5.5 INTERNATIONAL COUNTER-TERRORISM MEASURES AND RIGHT TO A REMEDY
- 2.5.6 RIGHT TO A REMEDY DURING STATES OF EMERGENCY
- 3 THE REGIME OF LIMITATIONS AND DEROGATIONS
- 3.1 GENERAL PRINCIPLES
- 3.2 SYSTEM OF LIMITATIONS
- 3.3 SYSTEM OF DEROGATIONS
- 3.3.1 GENERAL OVERVIEW OF THE TREATY PROVISIONS
- 3.3.2 INTERPRETATION OF ‘EMERGENCY’ BY THE TREATY BODIES
- 3.3.3 DEROGATIONS PROHIBITED BECAUSE THEY WOULD VIOLATE OTHER RULES OF INTERNATIONAL LAW
- 3.3.4 THE OVERARCHING NEED TO MAINTAIN THE RULE OF LAW
- 3.3.5 INTERPRETATION OF ‘TO THE EXTENT STRICTLY REQUIRED BY THE EXIGENCIES OF THE SITUATION’
- TEST 2
- TEST 3
- 3.3.6 CONCLUSION
- 4 THE ROLE OF INTERNATIONAL HUMANITARIAN LAW IN HUMAN RIGHTS LAW
- 5 INTERNATIONAL MEASURES TO PREVENT TERRORISM AND HUMAN RIGHTS PROTECTION
- 5.1 INTRODUCTION
- 5.2 COUNTER-TERRORISM TREATIES
- 5.3 MEASURES TAKEN BY THE UN SECURITY COUNCIL
- 5.4 MEASURES TAKEN BY THE UN HUMAN RIGHTS COMMISSION AND HUMAN RIGHTS COUNCIL
- 5.5 MEASURES TAKEN BY THE UN GENERAL ASSEMBLY AND UN SECRETARY-GENERAL
- 5.6 INTERNATIONAL CASE-LAW RELATING TO BINDING UN SECURITY COUNCIL MEASURES AND HUMAN RIGHTS
- 1 APPLICATION OF HUMAN RIGHTS LAW
- PART II ABSOLUTE PROHIBITIONS
- 6 PROHIBITION OF ARBITRARY DEPRIVATION OF LIFE
- 6.1 TREATY PROVISIONS AND BASIC PRINCIPLES
- 6.2 LAW ENFORCEMENT OPERATIONS
- 6.3 USE OF FORCE DURING ARMED HOSTILITIES
- 6.4 DEATH OR DISAPPEARANCE OF PERSONS IN THE POWER OF GOVERNMENT AGENTS
- 6.5 RESPONSIBILITY OF THE STATE TO PROTECT LIFE WHEN KILLINGS ARE COMMITTED BY NON-STATE ACTORS
- 6.6 REQUIREMENT TO INVESTIGATE POSSIBLE VIOLATIONS OF THE RIGHT TO LIFE
- 6.7 ARMED CONFLICT AND ‘ARBITRARY DEPRIVATION OF LIFE’
- 7 PROHIBITION OF TORTURE, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
- 7.1 ABSOLUTE NATURE OF THE PROHIBITION
- 7.2 DEFINITIONS
- 7.3 EVALUATION OF CERTAIN PRACTICES
- 7.4 NON-REFOULEMENT
- 7.5 PREVENTIVE AND DETERRENCE MEASURES
- 7.5.1 INTERROGATION METHODS
- 7.5.2 STATEMENTS MADE AS A RESULT OF TORTURE MAY NOT BE USED AS EVIDENCE
- 7.5.3 ACCESS TO A LAWYER
- 7.5.4 TRANSPARENCY OF DETENTION
- 7.5.5 EXAMINATION BY A DOCTOR
- 7.5.6 DETAINEE TO BE INFORMED OF HIS OR HER RIGHTS
- 7.5.7 DUTY TO INVESTIGATE A COMPLAINT
- 7.5.8 SUPERVISION BY AN INDEPENDENT BODY AND COMPLAINT PROCEDURE
- 7.6 RIGHT TO HUMANE TREATMENT
- 8 PROHIBITION OF ENFORCED DISAPPEARANCES
- 8.1 DEFINITION OF ‘ENFORCED DISAPPEARANCE’
- 8.2 ENFORCED DISAPPEARANCE AS A VIOLATION OF HUMAN RIGHTS
- 8.3 SPECIFIC INSTRUMENTS RELATING TO ENFORCED DISAPPEARANCE
- 6 PROHIBITION OF ARBITRARY DEPRIVATION OF LIFE
- PART III FUNDAMENTAL REQUIREMENTS OF DUE PROCESS
- 9 PROHIBITION OF ARBITRARY DETENTION
- 9.1 BASIC PRINCIPLES
- 9.2 MEANING OF ‘DETENTION’
- 9.3 DEPRIVATION OF LIBERTY TO BE IN ACCORDANCE WITH THE LAW
- 9.4 GROUNDS FOR DETENTION AND PROCEDURE ADOPTED MUST NOT BE ARBITRARY
- 9.5 ADMINISTRATIVE DETENTION ON SECURITY GROUNDS
- 9.6 INFORMATION ON REASONS FOR DETENTION
- 9.7 ACCESS TO PERSONS OUTSIDE THE DETENTION CENTRE
- 9.8 RIGHT TO SUPERVISION OF THE LAWFULNESS OF DETENTION (HABEAS CORPUS)
- 9.8.1 TREATY PROVISIONS
- 9.8.2 APPLICATION TO ANYONE IN DETENTION ON REQUEST
- 9.8.3 TIME WITHIN WHICH THE REMEDY MUST BE AVAILABLE
- 9.8.4 REPETITION OF REVIEW
- 9.8.5 MUST BE HEARD BY A COURT OR A COURT-LIKE BODY
- 9.8.6 NATURE OF EVALUATION AND PROCEDURAL GUARANTEES
- 9.8.7 APPLICATION DURING ARMED CONFLICT AND EMERGENCY
- 10 PRE-TRIAL DETENTION
- 10.1 INTRODUCTION
- 10.2 REQUIREMENT FOR A LAWFUL ARREST
- 10.3 REQUIREMENT TO BE BROUGHT PROMPTLY BEFORE A JUDICIAL OFFICER
- 10.4 RIGHT TO TRIAL WITHIN A REASONABLE TIME OR TO RELEASE
- 10.5 DEROGATION DURING STATES OF EMERGENCY
- 11 CRIMES AND THE PRINCIPLE OF LEGALITY
- 11.1 LEGAL BASIS REQUIRED FOR CONVICTION AND PUNISHMENT: BASIC PRINCIPLES
- 11.2 CLARITY OF DEFINITION OF CRIMES
- 11.3 PROSECUTION OF AN OFFENCE AFTER PRACTICE OF TOLERANCE
- 11.4 INTERNATIONAL CRIMES AND OFFENCES UNDER GENERAL PRINCIPLES OF LAW
- 11.5 INDIVIDUAL CRIMINAL RESPONSIBILITY AND PROHIBITION OF COLLECTIVE PUNISHMENT
- 12 RIGHT TO BE HEARD BY A COMPETENT, INDEPENDENT, AND IMPARTIAL TRIBUNAL
- 12.1 TREATY PROVISIONS
- 12.2 RIGHT OF ACCESS TO A COURT
- 12.2.1 BASIC PRINCIPLE
- 12.2.2 ACCESS LIMITED TO PROCEDURES COVERED BY FAIR TRIAL TREATY PROVISIONS
- 12.2.3 PROCEDURES RELATING TO THE EXPULSION OF NON-NATIONALS
- 12.2.4 LACK OF ACCESS BECAUSE OF PRACTICAL RESTRAINTS
- 12.2.5 IMMUNITIES
- 12.2.6 AMNESTIES
- 12.2.7 INTERNATIONAL ORGANIZATIONS’ COUNTER-TERRORISM MEASURES
- 12.3 DEFINITION OF COMPETENT, INDEPENDENT, AND IMPARTIAL TRIBUNAL
- 13 ELEMENTS OF FAIR TRIAL
- 13.1 BASIC CONCEPT
- 13.2 PRESUMPTION OF INNOCENCE
- 13.3 EQUALITY OF ARMS
- 13.4 PUBLIC HEARING
- 13.5 MEANS OF DEFENCE
- 13.5.1 ADEQUATE SERVICES OF A LAWYER
- 13.5.2 RIGHT NOT TO BE COMPELLED TO TESTIFY AGAINST ONESELF OR TO CONFESS GUILT
- 13.5.3 INFORMATION ON THE NATURE AND CAUSE OF A CHARGE
- 13.5.4 RIGHT TO CALL AND EXAMINE WITNESSES
- 13.5.5 RIGHT OF AN ACCUSED TO BE PRESENT AT THE TRIAL
- 13.5.6 RIGHT TO FREE ASSISTANCE OF AN INTERPRETER IF THE ACCUSED CANNOT UNDERSTAND OR SPEAK THE LANGUAGE USED IN COURT
- 13.6 RIGHT TO TRIAL WITHIN A REASONABLE TIME
- 13.7 RIGHT TO APPEAL TO A HIGHER TRIBUNAL
- 13.8 PROHIBITION OF TRIAL MORE THAN ONCE FOR THE SAME OFFENCE ( NE BIS IN IDEM )
- 13.9 EXTRADITION TO AN UNFAIR TRIAL
- 9 PROHIBITION OF ARBITRARY DETENTION
- PART IV LIMITATIONS TO FREEDOMS
- Preliminary Material
- 14 THE RIGHT TO HOME, PROPERTY, FREEDOM OF MOVEMENT, AND RESIDENCE
- 15 PARTICIPATION IN PUBLIC LIFE: FREEDOM OF EXPRESSION, ASSOCIATION, AND CONSCIENCE
- 15.1 TREATY PROVISIONS
- 15.2 MEANING OF TERMS
- 15.3 INTERPRETATION OF LIMITATIONS TO FREEDOM OF EXPRESSION
- 15.4 INTERPRETATION OF LIMITATIONS TO FREEDOM OF ASSOCIATION AND ASSEMBLY
- 15.5 INTERPRETATION OF LIMITATIONS TO MANIFESTATION OF BELIEF
- 15.6 PROTECTION OF THE MILITARY AND SECRET SERVICE
- 15.7 RESTRICTIONS DURING MILITARY OCCUPATION
- 15.8 RESTRICTIONS ON POLITICAL PARTIES
- 15.9 RESTRICTIONS ON DEMONSTRATIONS AND PUBLIC PROTESTS
- 16 PROTECTION OF THE PERSONAL SPHERE: RIGHT TO PRIVATE AND FAMILY LIFE
- PART V PROTECTION OF VULNERABLE AND DISADVANTAGED POPULATIONS
- 17 ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN SITUATIONS OF VIOLENCE
- 17.1 ELEMENTS RELEVANT TO APPLICATION IN SUCH SITUATIONS
- 17.2 INTERPRETATION OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN ARMED CONFLICT SITUATIONS
- 17.3 PROTECTION OF ESCR THROUGH CIVIL AND POLITICAL RIGHTS’ INDIVIDUAL PETITION SYSTEMS
- 17.4 COUNTER-TERRORISM MEASURES AND ESCR
- 17.4.1 EFFECT OF RESTRICTIONS TO CIVIL AND POLITICAL RIGHTS ON ESCR
- 17.4.2 EFFECT OF CERTAIN NATIONAL COUNTER-TERRORISM MEASURES
- 17.4.3 EFFECT OF BEING ON THE UN SECURITY COUNCIL SANCTIONS LIST
- 17.4.4 CONDITIONS CONDUCIVE TO THE SPREAD OF TERRORISM
- 17.4.5 CONSIDERATION OF ESCR FOR EMERGENCY MEASURES
- 17.4.6 CONSIDERATION OF ESCR FOR PEACE AGREEMENTS
- 18 VULNERABLE GROUPS DURING ARMED CONFLICT AND OTHER VIOLENCE
- 18.1 RECOGNITION OF VULNERABLE GROUPS
- 18.2 GENDER DISCRIMINATION
- 18.3 VIOLENCE AGAINST WOMEN
- 18.4 RESPECTING HUMAN RIGHTS OF PEOPLE UNDER 18 YEARS OF AGE
- 18.4.1 SPECIFIC PROBLEMS FACED BY YOUNG CHILDREN AND ADOLESCENTS IN SITUATIONS OF VIOLENCE
- 18.4.2 REQUIREMENT IN HUMAN RIGHTS TREATIES TO RESPECT IHL RULES THAT PROTECT CHILDREN DURING ARMED CONFLICT
- 18.4.3 HUMAN RIGHTS RULES APPLICABLE TO CHILDREN
- 18.4.4 INTERNATIONAL PRACTICE ON THE APPLICATION OF CHILDREN'S RIGHTS IN ARMED CONFLICT
- 18.4.5 CLASSIFICATION OF THE MOST SERIOUS ABUSES BY THE UN SECURITY COUNCIL
- 18.5 LAW RELATING TO THE USE OF PERSONS UNDER 18 IN THE ARMY AND ARMED GROUPS
- 18.5.1 LAW RELATING TO RECRUITMENT AND USE OF SUCH PERSONS
- Convention on the Rights of the Child, 1989 (CRC) and 1977 Protocols additional to the 1949 Geneva Conventions.
- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, 2000
- African Charter on the Rights and Welfare of the Child, 1990
- ILO Convention on the Worst Forms of Child Labour, 1999
- Inter-American Court's recognition of trend towards 18 years
- War crime of recruitment and use in hostilities of children under 15
- Loopholes in the legal provisions
- Use of children in armed forces or armed groups for purposes other than direct participation in hostilities
- Recruitment and use of child soldiers as a grave violation
- 18.5.2 LAW RELATING TO DEMOBILIZATION AND REINTEGRATION
- 18.5.1 LAW RELATING TO RECRUITMENT AND USE OF SUCH PERSONS
- 17 ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN SITUATIONS OF VIOLENCE
- Further Material
